- (1.) Heard Shri Ashit Kumar Chaturvedi on behalf of petitioner and Shri V. L. Verma on behalf of respondent No. 6. Brief facts of the case is that, respondents Punjab and Sindh Bank Branch Officer at GT Road, District Ghaziabad, U. P. had offered to grant of cash credit (hypothecation) limit of Rs. 15 lakhs to respondents Nos. 3, 4 and 5. The petitioner Smt. Krishna Kumari Talwar stood as guar - antor along with others. The petitioner had also executed an equitable mortgaged of the property in question in favour of respondents bank. The credit limit was enhanced up to Rs. 20 lakhs, at later stage. Several other properties were also hypothecated to the bank in pursuance of enhanced cash credit limit. Since the defendant failed to make the repayment of loan, the respondents bank had sent the demand notice for payment of Rs. 41,23,793.33 paise. In the event of default of payment the civil suit was filed, which was later on transferred to Debt Recovery Tribunal, Lucknow (respondent No. 1). After hearing the parties, the respondent No. 1 by the impugned judgment and order dated 12-1-2004, a copy of which has been filed as annexure No. 1 to the writ petition, has issued recovery certificate against the defendants of the suit, jointly and severally for the recovery of the sum of Rs. 41,23,793.33 together with pendentelite and future interest @ 23.25 per cent per annum with quarterly rest, till realisation together with costs. It has been also provided by the respondent No. 1 that all prop- erty hypothecated and mortgaged will remain attached under the jurisdiction of Tribunal and defendant of the suits were restrained not to sale, transfer or alienate any of the mortgaged/hypothecated properties. Respondent No. 1 further directed that the said amount shall be recovered from the sale of hypothecated/mortgaged property and the balance of amount shall be recovered from the defendant otherwise as per law. Feeling aggrieved with the impugned order, the present writ petition has been filed by the petitioner that she is an old lady of 75 years and she has been cheated by respondents Nos. 2 to 5 in connivance with the officers of the Punjab and Sindh Bank. It has been submitted by the petitioner that she had never intended to mortgage nor she had mortgaged her house No. 57 Arya Nagar District Ghaziabad. According to learned counsel for the petitioner, the petitioner had never signed any paper as guarantor and the respondent No. 1 had not heard the petitioner on merit, nor the recall application was heard.
(2.) On the other hand, the evidence discussed by the Tribunal shows that on one on other pretext the proceeding of the suit was interrupted from time to time and prolonged on account of non-co-operation on part of the petitioner as well as respondents Nos. 2 to 5 of the present writ petition. On the other hand, learned counsel for the respondents bank submits that the alternative appellate remedy is available to the petitioner under Section 17(2) of the Securitlsatlon and reconstruction of Financial Assets and Enforcement of Security Interest Ordinance. 2002 (in short here in after referred as Act). For convenience subsection (2) of Section 17 is reproduced as under: ".....17(2). Where an appeal is preferred by a borrower, such appeal shall not be entertained by the Debts Recovery Tribunal unless the borrower has deposited with the Debts Recovery Tribunal seventy- five per cent of the amount claimed in the notice referred to in sub-section (2) of Section 13: Provides that the Debt Recovery Tribunal may, for reasons to be recorded in writing, waive or reduce the amount to be deposited under this section." Since statutory remedy is available to the petitioner and the appellate Court is fully empowered to decide the factual dispute as well as illegality alleged to be committed by the opposite party No. 1, the present writ petition is not maintainable.
(3.) Learned counsel for the petitioner submits that under Section 18 of the Act there is no absolute bar and this Court may entertain the writ petition against the impugned order under the extraordinary power conferred by Article 226 of Constitution of India. No doubt this Court may exercise extraordinary power under Article 226 of Constitution of India but that power should be used sparingly and normally in those cases where there is no disputed question of fact existing for adjudication. In the present case the submission of the petitioner requires to decide the disputed question of fact which can be well appreciated by the appellate Court after summoning the paper book of the original case from respondent No. 1.;